Appeal from the District Court of the United States for the Western District of Pennsylvania; Robert M. Gibson, Judge.
Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
This is a suit on a lapsed war risk policy of insurance brought under the War Risk Insurance Act, 40 Stat. 409, and World War Veterans' Act 1924, § 5, as amended by Act July 3, 1930, 38 USCA § 426, by a soldier who, with the insurance in force, was wounded in battle, sustaining disability which he claims is total and permanent. The government, regarding his disability as partial, moved for a directed verdict in its favor. The court, denying the motion, submitted the case and the jury rendered a verdict for the plaintiff. The government appealed from the judgment that followed.
The sole question on the government's motion, and now on its appeal, is whether the claimed total permanent disability is negatived as matter of law by the plaintiff's work record and, accordingly, whether, within the definition promulgated in the regulations, there is evidence that he sustained an impairment of mind or body "which renders it impossible (for him) to follow continuously any substantially gainful occupation."
The evidence unquestionably proves a permanent disability; that at one time, and for a long time, it was total; and that, reckoned by the work the plaintiff has done since the war, it is either partial or total.
The basic law and the decided cases establish the propositions that recovery may not be had on a contract of war risk insurance for temporary total disability, Mason v. United States (C.C.A.) 63 F.2d 791; or for permanent partial disability, United States v. Thomas (C.C.A.) 64 F.2d 245; or for total permanent disability occurring after the expiration of the policy, United States v. McGrory (C.C.A.) 63 F.2d 697; and that it is incumbent upon the plaintiff suing on such a policy to show by substantial evidence that when the insurance was in force he was totally disabled and that such total disability was reasonably certain to continue permanently. United States v. McGrory (C.C.A.) 63 F.2d 697.
With these observations of the law in mind, we shall look upon the evidence in the light which the Supreme Court, in Lumbra v. United States, 54 S. Ct. 272, 78 L. Ed. /--, has recently thrown upon such cases, and upon the construction which should be placed upon the rules and upon the conditions to which they are addressed with reference to disabilities occurring when the contract of insurance is in force and to disabilities continuing after its lapse, influenced in part by evidence of the way the sufferer has or has not worked under them.
The evidence which we judge by their verdict the jury accepted proves that before the war the plaintiff was a mining engineer, in good physical condition. When a first lieutenant of infantry he took out a war risk insurance policy which was in force when, in September 1918, he suffered four wounds in battle. A bullet struck him under the arm pit. An hour later a bursting shell fractured his skull and lodged a piece of metal in one of his lungs. Shortly after, a bullet clipped a bone in his leg. For two days and two nights he received no medical attention.
The bullet wound in the arm pit was operated on in France, and resulted in gangrene. The bullet went through the nerve pack which supplies the arm and hand and for a time the arm was totally disabled. A second operation was performed in America in 1922, disclosing some paralysis of the arm, atrophy of the hand, disturbed circulation, wasting of bones, irritation of nerves, and constant pain. The nerve supplying the hand does not function well and is permanently injured. The arm was again attended in 1924, 1927 and 1928.
The skull fracture was in the frontal region over the left eye, crushing the sinuses and running up into the middle of the forehead. Two skull operations were performed in France, and a third in America in 1919 when the sunken cavity was rebuilt, leaving, however, a disfiguring scar. The left sinus is filled with grafted bone and scar tissue; the right sinus is filled actively with pus which constantly discharges.
The fragment of shell, the size of the end of a thumb, which lodged in the plaintiff's lung, remains there encapsulated below the upper left lobe where he feels it with every breath. It is a constant hazard and source of lung irritation, impairing the breathing capacity, weakening the general system and having a distinctly nervous effect. Doctors advise against its removal. So long as it is there, the man cannot exert himself for fear of dislodging the metal. The effect of this condition is bad.
The leg wound was of no consequence.
In general, the plaintiff is, at this time, highly nervous, emaciated, sensitive, depressed, and has the appearance of fright. He has a nervous heart with missing beats. Instead of weighing one hundred and seventy-two pounds as he did when he left for France he now weighs one hundred and forty-five pounds and has been as low as one hundred pounds. He sleeps badly and suffers severe headaches; he has frequent colds, and his eyes water all the time. His general breakdown appears not only to have been caused by the conditions we ...